Citation Nr: 0200015
Decision Date: 01/02/02 Archive Date: 01/11/02
DOCKET NO. 00-19 192 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for cause of the veteran's
death.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from August 1940 to
September 1945.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 2000 rating decision of the
Houston, Texas, Department of Veterans Affairs (VA) Regional
Office (RO). The RO denied service connection for cause of
the veteran's death.
The Board notes that in a September 1999 statement, the
appellant's representative stated that the veteran's multiple
service-connected disabilities had a combined evaluation of
60 or 70 percent and that it was possible that he was in
receipt of a total evaluation on the basis of individual
unemployability. The record reflects that the RO has not
adjudicated the issue of entitlement to dependency and
indemnity compensation under the provisions of 38 U.S.C.A.
§ 1318 (West 1991). As this claim has been neither
procedurally prepared nor certified for appellate review, the
Board is referring it to the RO for initial consideration and
appropriate action. Godfrey v. Brown, 7 Vet. App. 398
(1995).
FINDINGS OF FACT
1. The veteran died in June 1980. At the time of the
veteran's death, service connection was in effect for
traumatic arthritis, evaluated as 20 percent disabling;
residuals of a leg muscle injury, evaluated as 20 percent
disabling; residuals of an elbow muscle injury, evaluated as
20 percent disabling; residuals of a thigh muscle injury,
evaluated as 10 percent disabling; and impaired hearing,
evaluated as noncompensably disabling, for a combined
evaluation of 50 percent.
2. The cause of death on the death certificate was listed as
carcinoma of the lung with other significant conditions of
chronic lung disease and pulmonary fibrosis.
3. There is no competent evidence that establishes a nexus
between the veteran's service-connected disability or
disabilities and the cause of his death.
CONCLUSION OF LAW
Service connection for cause of the veteran's death is not
warranted. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 1991 &
Supp. 2001); 38 C.F.R. § 3.312 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's service medical records are presumed missing.
Additionally, the RO has been unable to obtain the veteran's
claims folder; therefore, the claims folder has been rebuilt
and does not have the veteran's initial claim for VA
compensation benefits.
The RO states that the veteran was service connected for
traumatic arthritis, evaluated as 20 percent disabling;
residuals of a leg muscle injury, evaluated as 20 percent
disabling; residuals of an elbow muscle injury, evaluated as
20 percent disabling; residuals of a thigh muscle injury,
evaluated as 10 percent disabling; and impaired hearing,
evaluated as noncompensably disabling, for a combined
evaluation of 50 percent.
The veteran's death certificate shows that he died in June
1980 from carcinoma of the lung with other significant
conditions of chronic lung disease and pulmonary fibrosis.
The appellant alleges that the veteran was severely wounded
in combat and that it is conceivable that the "dorsal
wound" resulted in pulmonary fibrosis.
II. Duty to Assist
VA has issued final rules to amend adjudication regulations
to implement the provisions of the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov.
9, 2000). 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and
3.326(a)). The intended effect of the new regulations is to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
The Board finds that VA has met its duty to notify and assist
in the appellant's case. A review of the record discloses
that the RO attempted to obtain the veteran's service medical
records through the National Personnel Records Center (NPRC)
in St. Louis, Missouri, and that the NPRC stated that the
records were in a location that was related to the 1973 fire
at the NPRC. The NPRC further stated that there was no
separation document available. The RO has properly informed
the appellant that it was unable to obtain the veteran's
service medical records in an October 1999 letter and asked
her for any service medical records she may have in her
possession or if she knew where it could obtain copies of the
veteran's service medical records. The appellant did not
provide a response to the letter, which was sent to her last
known address.
Additionally, the record reflects that the RO attempted to
obtain the veteran's claims file in November 1999 and again
in December 1999 and received negative replies.
Also, in the January 2000 rating decision on appeal, the July
2000 statement of the case, and the December 2000 and May
2001 supplemental statements of the case, the RO informed the
appellant of the evidence necessary to establish service
connection for cause of the veteran's death. In the July
2000 statement of the case, the RO also included the
pertinent regulations that applied to the appellant's claim.
Correspondence copies of these determinations were mailed to
the appellant's accredited representative, the Texas Veterans
Commission. These determinations were not returned by the
United States Postal Service as undeliverable, and thus the
veteran and his representative are presumed to have received
these notifications. See Mindenhall v. Brown, 7 Vet.
App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet.
App. 62, 64-65 (1992) (discussing that the presumption of
regularity of the administrative process applies to notices
mailed by the VA)).
Also, in a February 2001 letter, the RO informed the
appellant of the change in the law in November 2000. It told
her what she needed to submit to establish service connection
for cause of the veteran's death. The RO stated that it
needed the following evidence from her:
? The name of the person, agency, or
company who has the relevant records;
? The address of this person, agency, or
company;
? The approximate time frame covered by
the records; and
? The condition for which [the] veteran
was treated, in the case of medical
records.
(Italics in original.)
The RO also provided the appellant with a VA Form 21-4142,
Authorization for Release of Information, and told her that
she could assist them by identifying names, addresses, and
approximate dates of treatment of all medical care providers,
military, VA and non-VA, inpatient and outpatient, who may
have additional records referable to the veteran's treatment
for lung cancer following the veteran's discharge from
service to the present. The RO asked the appellant to submit
these records by April 23, 2001.
The record reflects that the appellant submitted no records
or no request to the RO for it to obtain records following
the issuance of this letter. The letter was sent to the
appellant at her last known address and was not returned as
undeliverable, and therefore it is presumed that she received
this letter.
The Board has reviewed the facts of this case in light of the
new VCAA regulations. As discussed above, VA has made all
reasonable efforts to assist the appellant in the development
of her claim and has notified her of the information and
evidence necessary to substantiate her claim. Consequently,
the case need not be referred to the veteran or his
representative for further argument as the Board's
consideration of the new regulations in the first instance
does not prejudice the appellant and the changes articulated
in the new legislation are less stringent. See generally
Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4
Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24,
1992).
III. Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991).
To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. The
death of a veteran will be considered as having been due to a
service-connected disability when the evidence establishes
that such disability was either the principal or the
contributory cause of death. Service connection will be
determined by exercise of sound judgment, without recourse to
speculation and after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran to include autopsy reports. See 38 U.S.C.A. § 1310
(West 1991); 38 C.F.R. §§ 3.303(a), 3.312 (2001).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
IV. Analysis
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
the claim for service connection for cause of the veteran's
death. The reasons will be explained below.
There is no evidence in the claims file to support the
appellant's allegation that the veteran's service-connected
traumatic arthritis, residuals of a leg muscle injury,
residuals of an elbow muscle injury, residuals of a thigh
muscle injury, and/or impaired hearing contributed to the
veteran's death. The death certificate clearly shows the
causes of the veteran's death, which were listed as carcinoma
of the lung with significant conditions of chronic lung
disease and pulmonary fibrosis. There is no competent
evidence establishing that any or all of the veteran's
service-connected disability or disabilities contributed to
carcinoma of the lung, chronic lung disease, or pulmonary
fibrosis. There is no evidence to establish when the veteran
incurred a lung disorder.
Additionally, there is no evidence that the veteran's
service-connected disabilities of traumatic arthritis,
residuals of a leg muscle injury, residuals of an elbow
muscle injury, residuals of a thigh muscle injury, and/or
impaired hearing contributed substantially or materially to
death, that they combined to cause death, or that they aided
or lent assistance to the production of death. Moreover, the
evidence of record does not establish that carcinoma of the
lung, chronic lung disease, or pulmonary fibrosis were
incurred in or aggravated by service. There is no evidence
of record that such were caused by or the result of the
veteran's service-connected disability or disabilities. As
stated above, the first showing of these diagnoses was at the
time of the veteran's death.
Although the appellant has asserted that the veteran's
service-connected disability or disabilities contributed to
the veteran's death, she is a lay person and her opinion is
not competent to provide the necessary nexus between the
veteran's service-connected disability or disabilities and
his death. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (1992).
Accordingly, for the reasons stated above, the Board finds
that entitlement to service connection for the cause of the
veteran's death is not warranted, and there is no doubt to be
resolved. See Gilbert, 1 Vet. App. at 55.
ORDER
Entitlement to service connection for cause of the veteran's
death is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals